Employee refused to wear mouthpiece and was rightfully denied pay: now rescission with fair compensation follows

Previously, Lonneke Nouwen wrote about this issue. The case involved an employee working as a delivery driver for a pastry shop. The employee circulates goods between branches, delivers to customers and picks up items from suppliers. On Oct. 13, 2020, the confectioner made it mandatory for all employees to wear a mouth guard.

The employee then refused to comply, after which he was denied access to work and his pay was suspended. The employee disagreed and went to court. The employee believes that wearing a face mask infringes on his privacy, causes health risks and causes a lot of inconvenience during his work. In addition, he says he can keep a sufficient distance from colleagues, making the wearing of an oral mask unnecessary in his job.

However, the preliminary injunction judge ruled in favor of the employer. It follows from the employer's instructional right that employees can be required to wear a mouth guard.

After these summary proceedings, however, the employment contract continued and the employer therefore asked the subdistrict court to dissolve the employment contract. Because of the incident with the mouthpiece, the employer no longer saw any possibility of continuing to work with the employee. How did the subdistrict court rule?

Disrupted employment relationship and fair compensation

The subdistrict court came to the opinion that the employment contract should be dissolved on the g-ground. In the period up to the preliminary relief proceedings, both parties could be reproached. From the judgment in preliminary relief proceedings onward, this is different and the employee cannot be blamed. After the summary proceedings, the employee stated that he would wear a mask. There was therefore no ground (anymore) to dissolve the employment contract on the grounds of culpable conduct on the part of the employee.

Moreover, after the summary proceedings, the employer did not do enough to restore mutual relations and even caused further escalation of the mutual conflict. In fact, after the summary proceedings and employee's offer to resume his work with mouthpiece, the employer should have entered into a conversation with employee about resolving the conflict. Instead, the employer chose to make employee a termination proposal. Moreover, this was a proposal that it knew or should have known that employee could not accept. When employee did not accept the termination proposal, the employee was summoned to resume work at 7 a.m. the next morning. The employer improperly did not accede to the employee's request to have a conversation and restore mutual relations. The ensuing wage strike for refusing to work further escalated the mutual relations. This is not good employment practice. The subdistrict court held that the employer's actions were seriously culpable and awarded the employee fair compensation of €3,000 gross.

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